The beauty of the Indian Constitution is that it includes, ‘I’, ‘We’, and ‘You’. This is a magnificent document that embodies every aspect of the society and the rules and regulations governing it and is further nurtured by judicial sensitivity.
The constitution can be defined as a written or unwritten document having a legal sanctity which sets out the framework of a country. It also prescribes the rights and duties of citizens. The 26th January 1950 was a Red-Letter day in the long and struggle history of India when our present constitution came into force. Constitution reflects the ideology and psychology of State. Constitution always contains sets of procedures sufficient for making any modification in the laws with the change in time. These provisions help the constitution to survive and improve with time. Constitution provides provisions for the rights and duties of citizens which are necessary for the overall development of citizens like the right to speech, right to religion, etc.
Indian Constitution is a written formal document that embodies the whole political system of our country in 395 articles divide into 22 parts and 12 schedules which makes it the lengthiest constitution in the world because it is a result of borrowings from other countries’ concept. It is a unique blend of rigidity and flexibility though it is a written document that has helped our constitution to survive for such a long time. Laws require changes from time to time with the wants and demands of the society because it is made for their betterment. The countries from whom we have borrowed the required provisions have changed them with the pace of time but we are still in the same position. This is the main reason for which our constitution is interpreted again and again with due time by various jurists.
There are various fields in which our Constitution has been drafted in some other way and now is being interpreted in some other way like-
Introduction of reservation for economically weaker sections.Flourishing rights to life and personal liberty: verdicts of Sec. 377 and 497 of IPC.Right to freedom of religion and the Supreme Court’s verdict in Sabarimala Case.The idea of secularism in Indian ConstitutionFreedom of speech and expression in the age of social media the relationship between the Centre and the State: introduction of GST Rights of the transgender with regard to be treated as a normal human being Amendment in Article 370
and many more are there in which our Indian Constitution has been interpreted differently. I would like to touch two points among this and discuss it broadly i.e. flourishing rights to life and personal liberty: verdicts of Sec. 377.
VERDICTS OF SEC 377 AND THE RIGHTS OF TRANSGENDER
The application of parameters of fundamental rights is an expression of judicial sensibility which further enhances the beauty of the Constitution drafted for public welfare by the Constituent Assembly.
Naz Foundation v. NCT of Delhi
Sec 377 was dealt in court for the first time in the case of Naz Foundation v. Govt. (NCT of Delhi) in the Delhi High Court dealt by two bench judge, Chief Justice Ajit Prakash Shah and Justice S. Murali Dhar which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by Constitution of India. In this case it was dealt with the provision of Sec 377 of IPC as unconstitutional. The Naz Foundation submitted that Section 377 violated Articles 14, 15, 19, and 21 of the Constitution.
Violation of provisions of Constitution
a. Article 15 and 19
They were not treated as a normal citizen of India and was discriminated on the basis of sexes only which is totally prohibited by Article 15. Sec 377 is violative of Article 15 since it discriminated on the basis of the sex of a person’s sexual partner. This was also violating Article 19
in the light that their freedom to speech and expression was violated. Sexual activities also come under the umbrella of Article 19(I). The gay community was facing serious humiliation by the public and sometimes face the public assaults also. They are forced to believe that they are not part of this society just because of the change of taste they bear with them. It denied the right to express one’s sexual identity through speech and choice of romantic or sexual partner. The discrimination brought for the gay couples, lesbian couples and the transgender community is serious hamper to their constitutional rights guarantee by the constitution to everyone equally irrespective of sex, caste, creed, color. The discrimination violates their right to life and personal liberty, right to equality, right to privacy and right to health also. LGBT members also face this kind of humiliation as well as discrimination in this society for which the norms are actually made by the social agenda and propaganda. Till now a minimum of 1880 people are punished for the offense of behaving in sexual cohabitation against that of nature. Therefore, High Court declared it to be ultra vires of the provisions of the Constitution.
b. Article 14 and 21
The right to equality is laid down in our preamble itself and the whole constitution should be understood in that context but the LGBT community are not allowed to use their right to equality which is the basic and most important part for one’s existence in a country.
Members of transgender community filed a writ petition for giving them a gender identity because the right to equality and right to life also includes the right to live with dignity also. The non-identification of gender to them violates their right to live with dignity which is undoubtedly guaranteed under Article 21. They should exercise and enjoy the same rights as that of the other citizens of the country. The hijras or the other members of the transgender community who are neither male or female need to be identified as the third gender with all legal and constitution protection. Our society often abuses transgender members in public like in railway stations, parks, bus stops, and all, etc. they also become victims to rape, molestations forcibly. They don’t get the opportunity to work for themselves irrespective of their quality of education. Firstly, they don’t get the opportunity to be educated and if they get educated also no one accepts them as employees in any of the sectors. This ultimately forces them to beg at signals, railway stations, or in other public places. The country is made of its people only and it is normal that it includes transgenders, or the lesbians’ community or gay couples. In the end, they humans with same flesh, blood eating same food breathing the same air, or drinking the same water then what is the point of this discrimination. Sex is the sole choice and choosing a sex partner is also the sole choice of someone then how can this be a punishable offense!! Transgender, lesbians, or gays is an umbrella term in which the persons come into the category of behaving in other forms irrespective of the sexes they are born with or are identified with.
This is a complete violation of Article 14 of the Constitution which gives equal rights to all irrespective of any gender. Article 14 does not bound itself to the ‘person’. Rather it functions beyond that. The right to equality provision went into the modification of the golden triangle with the need and demands of the society so this phase of aspect arising in the society with the group of people should soon be resolved. The right to equality consists the concept of treating equals equally and unequal unequally. This can also applicable to the transgender community, lesbian, and gay couples also.
WHY SECTION 377 WAS DECLARED UNCONSTITUTIONAL?
The Supreme Court unanimously held that Sec 377 of IPC criminalizes carnal intercourse against the order of nature and consensual sexual conduct between the adults of same-sex. The petition was filed against the Supreme Court’s order by Navtej Singh Johar in Navtej Singh Johar v. Union of India on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity, and protection against discrimination. His central issue was the constitutional validity of Section 377. The petitioner was a dancer and a part of LGBT community who filed a writ petition to the Supreme Court in 2016 seeking the right to have a sexual relationship and the right to choose a partner to be a part of the right to life guaranteed by Art. 21 of the Constitution of India. There was no reasonable clarification between natural and unnatural consensual sex. Some argued that the activities of the LGBT community do not violate their existing rights rather their acts would increase HIV/AIDS in the society and declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25 of the Constitution.
The five- bench judge of the Indian Supreme Court unanimously held that Section 377 of the Indian Penal Code was unconstitutional and overruled its decision in Suresh Koushal v. Naz Foundation. The Court relied upon its decision in National Legal Services Authority v. Union of India that gender identity is included to one’s personality and denying the same would be violative of one’s dignity. The Court also relied upon K.S. Puttaswamy v. Union of India and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. Hence, the court concluded that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private does not in any way harm public decency or morality. Further the Court also relied upon its decision in Shafin Jahan v. Ashokan K.M. and Shakti Vahini v. Union of India
to reaffirm that an adult’s right to choose a life partner of his/her choice is a fact of individual liberty.
However, the other portions of Section 377 relating to sex with minors, non-consensual sexual acts and bestiality remain in force. The judgment also made note that the LGBT community is entitled to equal citizenship and protection under law without discrimination.
BJP was one of the few parties which officially stayed silent on the verdict of LGBT. There were parties who spoke about it and synchronized with verdicts of the judiciary on gay rights and welcomed it.
The constitution is drafted and worked again on it on the social changes from time to time for the smooth functioning of the public policy but the question comes how much that is accepted by the society. It is the duty of we the people of this country to come out of the tantrums and accept the reality and try to live with the same bond of brotherhood. If one among is acting differently or in a unanimous manner which is expected does not categorize him out of the society. Instead of the behavior he is the same human being drinking, eating, and breathing as other common people. The concept of ruling someone also needs to be overcome by our society because everyone is in the same queue and no one is a ruler or follower over here. Juristic touch has been done and my paper is on the development but it’s the duty of we the people to implement it in our day to day life. Still, now transgenders are believed to be untouchable and not given respect, LGBT people are seen with the eyes of hatred ness, and women are thought to be property owned by men. My main objective behind writing this paper is to reach this knowledge of seeing the society in another dimension instead of sticking to the old superstitious things.
Constitutional Law of India- Dr. J.N. Pandey
Constitution Bare Act
Constitutional law of India- V.N. Shukla
Image Credits – www.constitutionnet.com